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State v. Neal4/8/1999
The Wilson County grand jury indicted the defendant on five counts of incest. The defendant pled guilty to one count of incest, and the remaining counts were dismissed. At the subsequent sentencing hearing, the trial Judge denied probation and sentenced the defendant to a term of five years to be served in the Tennessee Department of Correction. The defendant now appeals this sentence, contending that it is "excessive in that the testimony . . . does not justify that the efendant should serve the five year sentence in the tate enitentiary instead of on probation . . . . " It is unclear if the defendant is attacking the length of his sentence or only the denial of probation. After a review of the record and applicable law, we affirm the judgment of the trial court.
The defendant was indicted for various acts of incest that occurred over a period of one year while his daughter was in her early teens. The evidence indicated that the defendant had sexually abused his daughter on at least ten different occasions. The abuse consisted of sexual intercourse with the victim and ejaculation on the victim's body. This abuse continued until the victim's stepmother became aware of the situation.
The presentence report reflects that the defendant had been previously convicted of failure to appear, reckless endangerment, public intoxication, assault, three counts of operating a motor vehicle on an expired operator's permit, and two counts of driving under the influence of an intoxicant. The defendant has also been declared a motor vehicle habitual offender twice since 1994. At the sentencing hearing, the defendant presented evidence that he is employed, living in a stable environment, attending an alcohol abuse program, and attempting to "get whole life changed around."
When a defendant complains of his or her sentence, we must conduct a de novo review with a presumption of correctness. T.C.A. § 40-35-401(d). The burden of showing that the sentence is improper is upon the appealing party. T.C.A. § 40-35-401(d) Sentencing Commission Comments. This presumption, however, "is conditioned upon the affirmative showing in the record that the trial court considered the sentencing principles and all relevant facts and circumstances." State v. Ashby, 823 S.W.2d 166, 169 (Tenn. 1991).
The Sentencing Reform Act of 1989, codified at T.C.A. § 40-35- 210, provides that the minimum sentence within the range is the presumptive sentence. If there are enhancing and mitigating factors, the court must start at the minimum sentence in the range and enhance the sentence as appropriate for the enhancement factors and then reduce the sentence within the range as appropriate for the mitigating factors. If there are no mitigating factors, the court may set the sentence above the minimum in that range but still within the range. The weight to be given to each factor is left to the discretion of the trial Judge. State v. Shelton, 854 S.W.2d 116, 123 (Tenn. Crim. App. 1992).
In this case, the sentencing court found that the defendant had a history of criminal conduct, that the victim of the offense was particularly vulnerable because of age or physical or mental disability, and that the defendant abused a position of public or private trust. The defendant challenges the court's use of two of these enhancement factors and the court's failure to consider several mitigating factors.
The defendant contends that the trial court erred in applying enhancement factor (1), that the defendant has a history of criminal conduct. T.C.A. § 40-35-114(1). However, as set out earlier, the defendant has nine prior convictions, and the evidence indicated that the defendant had sexually ab
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